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PGMEDIA, INC. v. NETWORK SOLUTIONS

March 16, 1999

PGMEDIA, INC. D/B/A NAME.SPACE™, PLAINTIFF,
v.
NETWORK SOLUTIONS, INC. AND THE NATIONAL SCIENCE FOUNDATION, DEFENDANTS.



The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.

OPINION AND ORDER

Now pending before the Court are the motion of plaintiff PGMedia, Inc., d/b/a name space™ ("PGM") for summary judgment on Count VI of its second amended complaint, a claim for declaratory judgment*fn1; the cross-motion for summary judgment on Count VI of defendant Network Solutions, Inc. ("NSI"); and the cross-motion of defendant National Science Foundation ("NSF" or "the Government"*fn2) for an order staying this matter or, in the alternative, for summary judgment as to Count VI. For the reasons set forth below, PGM's motion is denied as to both defendants; NSI's cross-motion is granted; and NSF's cross-motion for summary judgment is granted.

Background

This complaint seeks to change the control of the vast network of computer networks known as the Internet. More specifically, it is a case concerning the authority to register domain names on the Internet. Domain names are something akin to mail addresses. But unlike real space, in cyberspace there is no logical connection between one's address and one's physical location on a defined map such that the address is easily discernable. Instead, in cyberspace one can choose virtually any domain name, with certain limitations. One limitation is that the domain name can end with one of only a handful of so-called top level domains ("TLD's").*fn3

There are currently seven generic TLD's ("gTLD's"): ".com," ".edu," ".gov," ".int," ".mil," ".net," and ".org." (Strawn Decl. ¶ 20.)*fn4 A complete Internet domain name consists of groups of alphanumeric characters, each known as a string, separated by a period, which is known and pronounced as "dot." The last string-the farthest to the right-is a TLD. (Graves Decl. ¶ 13.) Thus, for example, the Internet site for the Southern District of New York can be found at "usdcsdny.gov," and the domain name of National Public Radio is "npr.org." Each string can be up to 63 characters in length, but the overall domain name can be no longer than 255 characters. (Strawn Decl. ¶ 18.) There are approximately 2.4 million domain names with the .com TLD but less than 400,000 with .org, .net, .edu, and .gov combined. (Strawn Decl. ¶ 40.)

The protocol announced in RFC 1034 is known as the Domain Name System ("DNS"). (Strawn Decl. ¶ 16.) DNS is a hierarchical tree structure (Strawn Decl. Ex. B §§ 3.1-3.3) and uses a distributed database. (Strawn Decl. ¶ 19.) That database is initiated by "root servers." When a user types a domain name such as "usdcsdny .gov," his computer must first match that domain name to its associated IP number in order to locate the Southern District's Internet site in cyberspace. The computer attempts to match the domain name to the IP number by sending out a an address query. The matching of an IP number to a domain name is known as DNS name resolution. (Strawn Decl. ¶ 25.) The match information (for example, that "usdcsdny.gov" can be found at 156.121.20.201) is stored on various Internet-connected computers around the world known as domain name servers. Thus, the goal of the address query is to find the particular domain name server which contains the match information the user is looking for. (Strawn Decl. ¶ 19.)

Address inquiries are processed hierarchically beginning with the TLD. The highest level of the DNS database is the root zone file, which directs a query to the TLD zone file, which contains information regarding the location of gTLD's and the ccTLD's. In the case of someone searching for "usdcsdny.gov," the root zone file will refer the query to a TLD zone file containing information about .gov domain names.*fn7 The .gov zone file then refers the query to a second level domain ("SLD") file which contains all the SLD entries under .gov. (Strawn Decl. ¶ 20-21.) This is where the usdcsdny.gov query ends: the SLD file has the information matching the domain name to the IP number. With the IP number, the user's computer can now connect him to the requested Internet location. The Southern District's home page will appear, just as if the user had typed in the IP number instead of the alphanumeric address.

A new user who wishes to have an Internet site with an alphanumeric address first must obtain an IP number from IANA or a registry or Internet Service Provider ("ISP") that has already obtained a block of IP numbers from IANA. (Strawn Decl. ¶ 23; Manishin Decl. Ex. 5 at 11.) For example, she may receive the IP number 1.23.456.7. She then registers her domain name-say, "judicial-lawclerks.com"-and it becomes associated with her IP number.*fn8 The information that judical-lawclerks.com can be found at 1.23.456.7 goes on the "A root server." There are a total of 13 root zone files in the Internet, named A through M; servers B through M download new domain name registration information on a voluntary*fn9 and daily basis from the A server. (Strawn Decl. ¶ 26; Holtzman Decl. ¶ 8; Graves Decl. ¶ 29.)*fn10 In this way, no matter which root zone file a user's computer utilizes to begin an address query, the query can be completed successfully-in other words, the domain name is successfully resolved. (Strawn Decl. ¶ 26.)

The issue at the heart of this case is who handles the registration of new domain names and places the information regarding new registrations on the A root server each day. The current registrar for new domain names under the .com, .org, .net, and .edu TLD's is NSI. (Graves Decl. ¶ 16.) NSI has provided these registration services since 1993 pursuant to a Cooperative Agreement with the NSF. (Strawn Decl. Ex. F.) Pursuant to Amendment 4 to the Cooperative Agreement, NSI charges $100 to register a domain name for a two year period and $50 a year thereafter. Of the funds NSI collects from these charges, it keeps 70 percent; the remaining 30 percent is "placed into an interest-bearing account which will be used for the preservation and enhancement of the `Intellectual Infrastructure' of the Internet in general conformance with approved Program Plans." (Cooperative Agreement, Amendment 4 (dated September 13, 1995), Strawn Decl. Ex. F.) As noted above, there are almost three million domain names currently registered under the four TLD's for which NSI handles the registration.

To understand how NSI became the registrar of certain TLD's, it is necessary to understand the history and development of the Internet. Before the Internet, there were two networks known as ARPANET and NSFNET. (Strawn Decl. ¶ 5.) The entities who used these networks were research oriented organizations-mostly within government, business, and academia. ARPANET users engaged in military research and received funding from the Defense Department ("DOD") and like agencies, while NSFNET users included ARPANET users plus scientific researchers receiving funding from NSF, other Federal agencies, universities, and corporations. (Id.) By 1995, those networks had generally been known as the Internet. (Id. ¶ 6.) The IP numbering system was established in 1983 as part of a network system software called Transmission Control Protocol/Internet Protocol ("TCP/IP"). (Id. ¶¶ 6, 13.) The NSF supported many of the original technical studies that developed the Internet Protocol. (Pl.'s 56.1 Stmnt. ¶ 7.) Over time, more and more institutions and sites desired to be connected to the network (Id. ¶ 8.) and those that did connect were required to operate in accordance with TCP/IP and other consensus-based network standards. (Id. ¶ 10.) The Internet Engineering Task Force (supra, note 5) began in 1986 and received NSF support. (Id. ¶ 11.)

Assignment of IP numbers and registration of domain names was initially the responsibility of IANA. (Id. ¶ 27.) The actual registrations were conducted by the Defense Information Systems Agency Network Information Center, operated by a military contractor. (Id.) In the late 1980's, NSF began to support registration services for the non-military network. (Id. ¶ 28.) From 1987 to 1991 IANA had a DOD contract to handle registration of IP numbers and domain names, with the actual registrations performed by SRI (until 1990) and Government Systems Incorporated ("GSI") (1991-1992); GSI subcontracted with NSI in March 1991 to perform the actual registrations. (Id. ¶ 29.)

On March 19, 1992, NSF solicited competitive proposals for three network information service managers: one to provide registration services for the non-military Internet; one to serve as a central directory and database service; and one to serve as an information service assisting new entities joining the Internet. (Id. ¶ 31.) The solicitation was issued pursuant to the National Science Foundation Act of 1950, 42 U.S.C. § 1861 et seq., as amended, and the Federal Cooperative Agreement Act, 31 U.S.C. § 6305. (Strawn Decl. Ex. D § I.)

NSI's bid to provide registration services was selected by NSF. On January 1, 1993, Cooperative Agreement No. NCR-9218742 ("the Cooperative Agreement") between NSF and NSI went into effect. Under its terms it was to expire September 30, 1998. (Strawn Decl. Ex. F.) Among other provisions, the Cooperative Agreement provided that:

    [NSI] has primary responsibility for ensuring the
  quality, timeliness and effective management of the
  registration services provided under this agreement.
  To the extent that NSF does not reserve specific
  responsibility for accomplishing the purposes of this
  Agreement, by either special condition or general
  condition of this Agreement, all such
  responsibilities remain with [NSI].
    NSF has responsibility for registration services
  support, support planning, oversight, monitoring, and
  evaluation. NSF will make approvals required under
  the General Conditions and, where necessary and
  appropriate, NSF will contact and negotiate with
  Federal agencies and other national and International
  members of the Internet community to further the
  efforts of this project.

(Id. Art.'s 6(A), 6(B)(1).) Under the Cooperative Agreement, NSI became the registrar for the .com, .org, .net, .edu, and .gov TLD's; IANA continued its role as overseer of the allocation of IP numbers and domain name registrations. (Strawn Decl. ¶ 36.)

A March 1994 RFC by Jon Postel noted that IANA was responsible for the overall coordination and management of the DNS, and

  especially the delegation of portions of the name
  space called the top level domains. Most of these
  top-level domains are two letter country codes taken
  from the ISO standard 3166.
    A central Internet Registry (IR) has been selected
  and designated to handled [sic] the bulk of the
  day-to-day administration of the Domain Name System.
  Applications for new top-level domains (for example,
  country code domains) are handled by the IR with
  consultation with the IANA.

(Strawn Decl. Ex. H (RFC 1591) ¶ 3.) An August 1990 RFC, number 1174, specifically contemplated that the IR would serve as the centralized registration database:

    The IR would continue to be the principal registry
  for all network and autonomous system numbers. It
  would also continue to maintain the list of root
  Domain Name System servers and a database of
  registered nets and autonomous systems.
    In addition, however, the IR would also allocate to
  organizations approved by the Coordinating Committee
  for all Interncontinental Research Networking (CCIRN)
  blocks of network and autonomous system numbers, as
  needed, and delegate to them further assignment
  authority.
    It is recommended that, at least initially, the IR
  serve as the default registry in cases where no
  delegated registration authority has been identified.
    Copies of the aggregate Internet registration
  database(s) should be maintained by the IR and copies
  provided to each delegated registry to improve
  redundancy and access to this information. Updates to
  the database, however, would still be centralized at
  the IR with complete copies redistributed by file
  transfer or other means on a timely basis.

(Strawn Decl. Ex. G (RFC 1174) ¶ 1.3.)

The Cooperative Agreement specifically required NSI to "provide registration services in accordance with the provisions of RFC 1174." (Strawn Decl. Ex. F, Art. 3(C).)

In July 1996, PGM established its own network of 13 name servers to provide a domain name registry in competition with NSI's. (Garrin Decl. ¶ 9.) PGM has begun to accept domain name registrations under approximately 530 new gTLD's. (Id. ¶¶ 15, 20.) Some of these gTLD's are forpresident, formayor, and computers. (Id. ¶ 9.) According to PGM, its name servers are in compliance with all existing industry standards and protocols, but domain names registered under PGM's gTLD's are not universally resolvable. (Id. ¶ 12.) This is because they are not listed in the root zone files. (Id.) If NSI were to amend the root file on the A server to include PGM's gTLD's and the domain names PGM registers thereunder, then the root zone files on the other 12 root servers would receive the updated information and end users who typed in a forpreseident address would be connected to that forpresident address. But when the root servers do not recognize a top level domain name, the domain address cannot be resolved and the connection fails. (Id. ¶ 8.) In the words of the Commerce Department's National Telecommunication Information and Administration's ("NTIA") June 6, 1998 policy statement, "Universal name consistency on the Internet cannot be guaranteed without a set of authoritative and consistent roots. Without such consistency messages could not be routed with any certainty to the intended addresses." Management of Internet Names and Addresses, 63 Fed.Reg. 31741, 31742 (1998).

  acts as only one of a number of root name server
  administrators, but does not "control," as you put
  it, which data is input and resolved. Network
  Solutions, along with all of the other root server
  administrators located around the United States and
  in Sweden, takes its direction from, and is under the
  authority of, the Internet Assigned Numbers Authority
  (IANA), located at the University of Southern
  California.
    We, therefore, must decline to comply with your
  demand. We have, however, sent the original of your
  correspondence on to the IANA for its information and
  consideration.

(Manishin Decl. Ex. 9.)

On March 20, 1997, PGM filed its initial complaint in this action, naming NSI as the sole defendant, charging antitrust violations, and naming IANA as a non-party co-conspirator. (Compl. ¶ 5.) On March 27, 1997, NSI's counsel wrote to Jon Postel at IANA to seek confirmation that what NSI had told PGM in response to PGM's March 11, 1997 letter was correct, i.e., that "NSI maintains the information on that root-server under the authority and at the direction of the IANA and NSI can only make changes to the Configuration File at the direction of IANA." (Manashin Decl. Ex. 10.) On April 4, 1997, the general counsel of the University of Southern California*fn11 responded to NSI's March 27, 1997 letter stating:

  The statement made in your letter concerning the
  relationship between the Internet Assigned Numbers
  Authority ("IANA") and Network Solutions, Inc.
  ("NSI") is not correct. We are aware of no contract
  or other agreement that gives IANA authority over
  your client's operations. The IANA has no authority
  to establish a generic top level domain ("gTLD")
  without an Internet community consensus arrived at
  through committee review and ample opportunity for
  public impact. Instead, the restriction in expansion
  of gTLD's has thus far been due to consensus which
  your client has chosen to accept in refusing requests
  from potential registrars of new gTLDs.

(Manashin Decl. Ex. 11.)

On June 10, 1997, NSI's Internet business manager, David Graves, wrote to Don Mitchell, Cognizant Program Official for the NSF's Network and Communication Division, expressing concern over PGM's suit and other potential litigation over the TLD registration issue.

  Network Solutions finds itself in the difficult
  position of defending against antitrust claims that
  its server is an "essential facility" for Internet
  commerce, while at the same time privately and
  publicly supporting the addition of more TLDs to
  enhance competition. Further, Network Solutions must
  defend itself without any certainty as to whether it
  has the authority to accept or reject demands, such
  as PGMedia's, for the inclusion of additional TLDs.
  There are no technological restrictions or
  impediments to the inclusion of additional TLDs to
  our root zone file. Network Solutions has no interest
  in being the target of such actions, and, I am
  certain, the NSF does not want to become one either.
  In the absence of action, the number of lawsuits will
  likely increase as more demands for the inclusion of
  additional TLDs are received.
    Under the above circumstances, we believe that
  additional TLDs should be included on our root zone
  file. We also believe that the addition of new TLDs
  will be beneficial to a more competitive environment
  and desirable for a further commercialization of
  Internet registration services at this time.
  Accordingly, it is our intention to announce publicly
  that on July 15, 1997 Network Solutions will begin
  accepting applications to include new TLDs on the
  root zone file from PGMedia, Iperdome, and other
  interested parties.
    By this letter, we seek NSF's concurrence in this
  action, and respectfully request your response no
  later than June 25, 1997, to allow us sufficient time
  to finalize our plan and to report to the Federal
  Court in the PGMedia suit. Network Solutions believes
  that it is imperative to proceed with the public
  announcement of this plan, ...

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